Unpublished Disposition, 928 F.2d 409 (9th Cir. 1986)

No. 88-5289.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Central District of California, No. CR-87-0216-RMT-4; Robert M. Takasugi, District Judge, Presiding.

C.D. Cal.

AFFIRMED.

Before CANBY and RYMER, Circuit Judges, and LEVI^*  District Judge.

MEMORANDUM^** 

Zapata appeals from the conviction and sentence imposed upon him after a bench trial. On appeal, Zapata challenges his conviction of one count of conspiracy and several counts of possession of cocaine with intent to distribute. Zapata challenges the sufficiency of the evidence underlying these convictions. In addition, he contends that the court erroneously considered inadmissible hearsay and that the court lacked jurisdiction over him because he was seized in Panama and was forcefully brought to the United States.

We affirm the decision of the district court.

ANALYSIS

Sufficiency of the Evidence

Zapata argues that the evidence is insufficient to support his conspiracy conviction. Zapata has waived this argument because he failed to raise it in his motion for acquittal.²  See United States v. Hernandez, 876 F.2d 774, 777 (9th Cir. 1989). However, this court has reviewed "waived" sufficiency of the evidence arguments under the plain error standard. Id. (citations omitted). "A plain error is a highly prejudicial error affecting substantial rights." Id. (citations omitted). We review Zapata's sufficiency of the evidence challenge with this standard in mind.

To prove a conspiracy, the government must show an agreement to engage in criminal activity and one or more overt acts in furtherance of the conspiracy. Id. More than enough evidence was introduced at trial to support Zapata's conspiracy conviction.

On August 28, 1985, Zapata and his brother-in-law, Hugo Obando, met with two undercover agents in Los Angeles.³  Obando negotiated with the agents over the delivery and payment of 700 kilograms of cocaine that he expected to arrive shortly in the United States. Obando told the agents that he wanted to launder the drug proceeds in $500,000 increments. Four days later, Zapata and Obando again met with the agents. On this occasion, Obando told the agents that he had received the 700 kilos. At a meeting a short time later, Obando told the agents that Zapata was in charge of distributing the 700 kilos of cocaine and collecting the proceeds from the distribution.

Over the next few months, Zapata and his girlfriend, Olga Casteneda, made seven or eight currency collections in Los Angeles. According to Zapata, in October of 1985, he visited Columbia with the intent of establishing his own money laundering operation. After his return to the United States, Zapata met with an undercover agent on October 26. The agent asked Zapata when the ordered 100 kilos of cocaine would be delivered. Zapata replied, "I'll get back" to you. The undercover agent testified that he had spoken to both Zapata and Obando about the cocaine on a number of occasions throughout the previous month.

A government informant talked with Zapata in November of 1985 about "twenty shirts." "Twenty invitations" were referred to in another conversation around that time; the informant said that the reference to "invitations written with good ink" referred to good quality cocaine. Also in November, Casteneda told an undercover agent that she must check with Zapata before delivering three kilos of cocaine. In addition, after Casteneda reported a robbery of approximately $300,000 from her apartment, Zapata asked an undercover agent if the drugs had been taken.

Zapata testified that beginning in December of 1985 his money laundering operation was completely independent of Obando's money laundering and drug operation. However, on December 9, 1985, Casteneda met with an undercover agent at the Tango Lounge in Los Angeles. She told the agent that she and Zapata had 150 kilos stashed in her apartment and would be distributing the drug.

Zapata admits that he worked for Obando by collecting drug proceeds. This evidence, along with the various agents' testimony, supports Zapata's conviction on count one. The district court did not commit plain error.

B. Counts three, four, five, and six: The Substantive Narcotics Charges⁴ 

Zapata contends that even if the evidence is sufficient to establish that he participated in the conspiracy in 1985, he withdrew from the conspiracy and cannot be convicted for drug possession and distribution arising from a November 18, 1985, and a January 17, 1986, drug transaction. Zapata contends that because he cannot be held under a theory of co-conspirator liability for these crimes, the evidence is insufficient to convict him on counts three, four, five, and six. We hold that there was no plain error in convicting Zapata on all four counts.⁵ 

The evidence indicates that although Zapata may have had his own money laundering operation throughout 1986, his connection with Obando's operation was not completely severed. As late as March of 1986, Zapata asked an undercover agent about a payment due on some drugs delivered by Obando. Zapata's continued participation in the conspiracy was sufficiently demonstrated that his conviction for drug possession and distribution was not plain error.

The Hearsay Objection

Zapata contends that four hearsay statements were erroneously admitted as co-conspirator admissions. We need not determine whether the admission of these statements was error; we reverse evidentiary rulings for an abuse of discretion only if the non-constitutional error would have been more likely than not to affect the verdict. See United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987). Even without the four statements at issue, there was an overwhelming amount of evidence offered at trial to support Zapata's convictions. The admission of these four statements did not affect the verdict.⁶ 

Jurisdiction

Zapata contends that his allegedly illegal abduction from Panama violated due process, divesting the district court of jurisdiction to try him. We rejected a similar contention in United States v. Valot, 625 F.2d 308 (9th Cir. 1980). Zapata has not alleged governmental conduct "of the most shocking and outrageous kind" such that the district court would be precluded from exercising jurisdiction over him. See id. at 310 (citing United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65066 (2d Cir.), cert. denied, 421 U.S. 1001 (1975)). The Panamian officials arrested Zapata, put him on a plane bound for the United States; no torture or misconduct occurred on the part of the officials. Cf. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) (district court was divested of jurisdiction where defendant had been extensively tortured by Bolivian officials with some participation or knowledge by United States officials). Moreover, there is no merit to Zapata's contention that his thirty year sentence is equivalent to one week of torture. Cf. Penry v. Lynaugh, 109 S. Ct. 2934; Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978) (distinguishing between sentence of life imprisonment and death in eighth amendment context). The district court properly exercised jurisdiction over Zapata.

Affirmed.